ARCHIVED — Howard Knopf

COPYRIGHT REFORM PROCESS

SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS

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Documents received have been posted in the official language in which they were submitted. All are posted as received by the departments, however all address information has been removed.

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Submission from Howard Knopf received on September 14, 2001 via e-mail

Subject: My Copyright Submission

PDF Version


Dear Sirs:

Please find attached my submission on the recent copyright proposals.

This is submitted in HTML.

As noted in the submission, this was recently published in Prof. Geist's Journal. I have retained the copyright and there is no problem about publishing it in your forum on the Internet.

I do not mind if you include my full address and contract information and I would actually specifically ask that you do so.

Please contact me if you have any questions.


Yours sincerely.



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Howard P. Knopf
Macera & Jarzyna
(Address removed)


INTERNET COPYRIGHT REFORM INITIATIVES FROM CANADIAN GOVERNMENT

(The following submission was published in Internet and E-Commerce Law in Canada, Vol. 2, No.5, July 2001, ed. Prof. Michael A. Geist)

© Howard P. Knopf 2001

On June 22, 2001 the two Canadian federal government departments responsible for the Copyright Act released three potentially important consultation papers bearing on copyright and the Internet. ⁽¹⁾

• THE FRAMEWORK PAPER:

 

 

The first paper, entitled A Framework for Copyright Reform (hereinafter "Framework") attempts to put Canada's copyright reform efforts in a context of recent Canadian legislation, the 1996 World Intellectual Property Organization ("WIPO") so-called "Internet" treaties, and the required parliamentary review of Canada's copyright legislation due in 2002. The Government sets forth a non-exhaustive list of agenda items that clearly relate to the WIPO treaties, as well a many that do not. An appendix to the Framework paper presents a very brief explanation of some of these issues, but almost nothing about the underlying controversies.

For example, the paragraph on database protection ignores the fact that the Federal Court of Appeal last year held that the juxtaposition of a column containing "private" sale prices for used cars beside a column containing "retail" prices could be protected by copyright as a compilation without any copying of the actual data. ⁽²⁾ This is difficult to reconcile with another recent Federal Court of Appeal judgments penned by the same judge on the issue of the threshold of originality necessary for a compilation to merit protection under the Copyright Act. ⁽³⁾ The brief discussion also gives no hint of the controversies that have raged over the database issue in the United States and Europe or of the constitutional issues that could inevitably arise if a solution were to be undertaken according to "other principles" than those of traditional copyright, which is a suggested possibility. Likewise, the brief discussion of term of protection provides no hint as to the controversial background of the recent amendments in the U.S.A. and Europe that led to a "life + 70" year term in those jurisdictions. There is no discussion of how term extension could result in "net gains" to Canada or how it might stimulate creativity by living authors. The fact that this issue is now on the agenda with possible retrospective application to authors who might have died before the amendment comes into force should be a cause of alarm in the academic, research, publishing and entertainment world where access to the public domain after a reasonable length of time has always been a basic right. Neither the database nor the term extension issues are the subject of any existing or reasonably foreseeable treaties and either of these issues alone could derail an otherwise viable package.

The Framework paper is vague as to how the various issues will be dealt with in the reform process. The only real direction is to be found in the content of the two companion papers, which deal with certain issues on a somewhat more specific basis, and in the list of "priority considerations" which includes the following two potentially problematic items:

• ensuring net gains for Canadians

• where Canada can seize early opportunities in the marketplace

"Net gains for Canada" is a proverbially troublesome concept in the Canadian copyright milieu. A great deal of royalty revenues leave Canada every year, mostly to the U.S.A., either directly though licenses and foreign distribution by collectives or through foreign ownership or control of Canadian firms. Canada's deficit in cultural goods and services was $3.0 billion in 1999. ⁽⁴⁾ Because copyright law is almost invariably "national treatment" in nature, whatever measures result in greater revenues to Canadians are likely to increase Canada's trade deficit by a far greater amount. Prime Ministers from Sir John Thompson in 1889 to Brian Mulroney, at the Shamrock Summit of 1985 have focussed on copyright as a tool in international trade strategy. The other cause for potential concern is the suggestion that Canada should "seize early opportunities in the marketplace". There has been much talk about moving streaming servers to Canada, Napster North, and Internet based TV retransmission. Is this what the Government has in mind?

The Framework paper provides no bibliographic or jurisprudential references. This is in stark contrast to the analytical papers that have been published in recent years by the U.S. Government, for example. ⁽⁵⁾ It is also in complete contrast to the documents published by the Canadian government on copyright from 1980 to 1984 that are still useful as reference tools and examples of thorough policy analysis. While the other papers provide somewhat more information with respect to the specific issues dealt with therein, none of these three papers will be very useful for reference or research purposes.

An interesting point is made in the conclusion of this paper, which notes that:

By moving with deliberation, the Canadian government can benefit from the lessons learned in other countries as it moves forward with modernization of the Copyright Act.

This is clearly intended to send a signal to both those who believe that the Government has either moved too fast or too slowly in recent times. Indeed, both points of view are arguable. The U.S.A. has enacted its Digital Millennium Copyright Act ("DMCA") and ratified the 1996 WIPO Treaties. The EU has just passed a comprehensive directive and clearly intends to ratify these treaties. Clearly, lessons can be learned from both of these efforts. On the other hand, cynics of all stripes may wonder whether Canada is not simply being indecisive or unproductive.

Part of the reason for "deliberation" may be Canada's unique arrangement whereby two federal departments with often conflicting mandates have been given permanent joint custody of the Copyright Act, a troubled child that will probably never mature and will always require special care. The paternal role has been taken by Industry Canada, which has usually shown disinterest at the ministerial and senior management levels, expect for occasional exercises in analytical discipline or expressions of displeasure. The more active, maternal and supportive role is taken by Canadian Heritage, a department that is much more focussed on and conversant with the influential culture community, though sometimes seemingly regardless of the economic consequences. Occasionally, there have been suggestions and at least one private member's bill that would award Canadian Heritage sole custody.
 
 

•    THE DIGITAL ISSUES
 
The second paper is entitled CONSULTATION ON DIGITAL COPYRIGHT ISSUES (hereinafter the "Digital Issues" paper). This lengthy document stops short of indicating explicitly whether the Government intends to ratify either or both of the 1996 WIPO Internet treaties. The first treaty is the WIPO Copyright Treaty ("WCT") which deals with traditional copyright subject matter. The other is the WIPO Performances and Phonograms Treaty ("WPPT") which deals, as the name suggests, with rights of performers and sound recording producers, or so called "neighbouring rights" owners. Both sides of the ratification debate may be troubled by this silence. The treaties, though they are not yet in force, are almost five years old.

This 44 page document is based on two earlier problematic official documents. The IHAC (Information Highway Advisory Committee Report) report was notable for its call for a "browsing rights", which would have created the absurd situation that any copyright owner who puts a work up on the Internet without technological restriction could then sue anyone who browsed such a work without permission (or payment). The IHAC report also included a recommendation that Canadian content be somehow placed at "eye level" on the Internet, a notion that even the CRTC has clearly dismissed by indicating that it exempts the Internet from regulation "without terms or conditions." ⁽⁶⁾ The current document contains several references to the imponderable and perhaps insoluble paradox of how to use copyright law "to promote dissemination on-line of new digital content, for and by Canadians". ⁽⁷⁾

Is this simply flag waving or do these numerous nationalistic nods signal that the Government may depart from perhaps the most sacred of all copyright principles, namely that of "national treatment", which entails that a country should treat the nationals of treaty states the same if not better than its own nationals.

The other problematic reference point is that of the two cursory papers commissioned by the Government from J. Daniel and L. Harris ("Daniel/Harris") in 1998 concerning what if any legislative changes would be needed for Canada to ratify the WIPO Internet treaties. These documents ⁽⁸⁾ consist essentially of the following repeated statement in respect of most articles of the two treaties, with no explanation of either the article or the reasoning behind the conclusion:

Option:

Status quo. Canada is in compliance with the Treaty.
 

Where the authors believe that amendment may be needed, the commentary is generally perfunctory.
 

•     WIPO COPYRIGHT TREATY

The "Status quo" conclusion was given by Daniel/Harris, without reasons, with respect to Articles 6 and 8 of the WCT which deal with the complex matters of the distribution and communication/making available rights respectively. These particular conclusions on Articles 6 and 8 of the WCT are far from obviously correct and may well be wrong, for reasons including those I have published elsewhere. ⁽⁹⁾ For example, Canada does not currently provide for a "distribution" right, once a work has been legally put on the market, with the possible exception of the notably byzantine provisions for books. In fairness, the distribution right is not on the current agenda but it should be if the Government is seriously considering ratification of the treaties in the foreseeable future.

Morever, the question of whether "making available" a work results in its "communication" was considered - and explicitly rejected -- by the Canadian Copyright Board in the "Tariff 22" decision (now under judicial review). ⁽¹⁰⁾ The Board was urged to consider Article 8 of WCT but declined to do so, not surprisingly, because Canada has not ratified it. ⁽¹¹⁾ The Copyright Board held that there could be liability for the authorization of the right of communication to the public by telecommunication. But, that is not necessarily the same thing as communication or "making available". A plain reading of Article 8 of the WCT indicates that "making available" is included in an even broader communication right.

The current Digital Issues paper attempts to fill in the unstated reasoning in the Daniel/ Harris study, but is still incomplete. It does not fully address what "making available" was intended to mean in the WIPO treaties, and how this right - which is expressly set out in the WCT as a subset of a "communication" right - may overlap with or indeed differ from the rights provided for in Canada for the "communication to the public by telecommunication", performance, or reproduction rights.

The current Digital Issues paper is also completely silent about the potentially profound impacts that Articles 6 and 8 of the WCT could have on the question of international exhaustion (i.e. the free movement of legitimately acquired copies of copyrighted works) across borders, which I have discussed in detail elsewhere. ⁽¹²⁾ This is likely to be among the main issues in any possible resumption of negotiations concerning the WTO and TRIPS agreements.

 
• WIPO PERFORMANCES AND PHONOGRAMS TREATY
 
Article 8 of the WCT and its counterpart Article 10 of the WPPT differ in some respects. The former requires that an exclusive right be given for communication (including making available) but this is "without prejudice" to certain provisions of the Berne Convention, which in turn are subject to the possibility of compulsory licencing. The possibility of compulsory licensing is explicitly referred to in the agreed upon statement that accompanies the WCT. This is not mentioned in the Digital Issues paper but is of potentially critical importance in the Canadian context. Article 10 of the WPPT provides for an exclusive "making available" right but does not deal with "communication".

The Digital Issues paper suggests that the holders of rights in performances and phonograms are entitled to an exclusive "making available" right and amended legislation, but that traditional copyright holders are not. This is based on the Daniel/Harris conclusion that s. 19 of the Copyright Act provides only for a right of equitable remuneration (i.e. a right subject to a compulsory license) and the Act does not provide an exclusive right of "making available". Daniel/Harris conclude, with no evident reasons, that the right to communicate to the public includes a making available right, a notion called into question by the Copyright Board as noted previously.

With many important details and issues omitted, the Government has decided that it will "pursue a dialogue on the merits of introducing a making available right" for performers and record producers but not for traditional copyright owners The Government does admit (again filling in the analytical void in the Daniel/Harris paper) that this will create three sets of rights holders, any one of which could veto an agreement reached by the other two. What the Government does not explicitly point out is that the neighbouring rights holders will be in a better position than the traditional rights holders, because they would have exclusive rights, whereas the traditional rights holders can, in principle, be held to rights limited by actual compulsory licenses or the current de facto compulsorily applicable regime administered by the Copyright Board that has similar results to a compulsory license. While there is much integration and an ostensible front of cooperation in the music industry in Canada, these differences are bound to cause significant complexity and internecine rivalry.

 
•         ANTI-CIRCUMVENTION
 
Article 12 of the WCT and Article 18 of the WPPT require that laws be in place to provide adequate protection against circumvention of technological measures adopted by copyright owners to protect their rights. The discussion in the Digital Issues paper does, to its credit, point out that overly protective measures could enable copyright owners to prevent uses that would otherwise be ensured under the Copyright Act.
 

A common concern is that fair dealing, insubstantial copying and even basic access to works that have passed into the public domain could be prevented. The paper does not mention the issue of geographical market segmentation, which many believe to be the real driving force behind the intense litigation in the U.S.A. to stop dissemination of the so-called DeCSS computer code, which bypasses the regional coding software that the motion picture industry relies upon to achieve geographical market segmentation of DVDs. Such coding effectively inhibits international trade in legitimate DVDs that may be cheaper in one region than another because the products may not be playable on the machines sold in the higher price area. Such "parallel" or "grey market" trade is often perfectly legal and is indeed required within the EU.

The Digital Issues paper is candid in suggesting that overly protective demands may result in a re-examination of the current exceptions provisions and even the treasured (by the music industry) but unpopular private copying regime, which legalizes home copying of music in exchange for the payment of a levy (critics call it a "tax") on blank recording media.

Not surprisingly, the proponents of strong anti-circumvention measures are reluctant to address the effect that overly protective measures could have on technology itself. Some of the technology that is now taken for granted, such as tape recorders, VCRs and personal computers themselves, might well have offended some of the measures now under consideration, had such provisions been in place at the time that these products were emerging. All of these products are capable of both clearly legal and illegal uses. In a famous example of copyright hyperbole, Jack Valenti - the ultimate missionary for strong copyright laws - told Congress in 1982 that "the VCR is to the American film producer and the American public as the Boston Strangler is to the woman alone." By rejecting Valenti's campaign for copyright controls on VCRs and video rentals, the U.S. Congress, the U.S. Supreme Court ⁽¹³⁾ and other governments encouraged the creation of the home video industry which subsequently proved to be so immensely lucrative to Mr. Valenti's Hollywood clients.

 
• RIGHTS MANAGEMENT


A related issue to anti-circumvention is the requirement in both treaties that measures be in place to prevent interference with digital rights management systems. These are the long promised systems that will enable identification, tracking, control and ultimately the seamless and inexpensive transaction of rights in copyrighted works. However, there are still no such system in place anywhere on a significant scale. There are enormous technological and political problems in deploying such a systems, especially on a standardized basis. It is obvious that they entail a fundamental threat to the basic established order of collectives.

There is also the potential for inaccuracy or even abuse. For example, many book and music publishers and record companies routinely place copyright notices on material that is long since in the public domain, such as a Shakespeare play or a Mozart symphony. The Government does go so far as to recognize that such information may someday "cease to be accurate". However, there is no discussion of the fact that much of it already is or will be inaccurate to start with. If it is proposed to create an offence for tampering with digital rights information, perhaps there should be an offence and/or significant civil liability for deliberately or negligently disseminating inaccurate information. For example, in the U.S.A., the misuse of the statutory ® symbol for a trade-mark that is not actually registered may constitute false advertising or even fraud and lead to a bar to actual registration or to the maintenance of an infringement action. Likewise, in the misuse of the words "patent" or "patent pending" or similar expressions is an offence under U.S. law. ⁽¹⁴⁾

Following the brief discussion by Daniel/Harris, the Government essentially proposes that Articles 12 and 19 of the WCT and WPPT respectively could form the basis of new types of secondary infringement and offences. The paper raises but does not begin to address the obvious privacy issues that could result if technological measures are used to track the browsing, reading and entertainment consumption of individual consumers.
 

• ISP LIABILITY


There is a lengthy and inconclusive discussion of what options are being considered with respect to ISP (Internet Service Provider) liability for infringing material hosted, cached or otherwise dealt with by ISPs. There is a very short and inadequate discussion of various roles played by different types of ISPs. The very definition of an ISP has proven to be critical in recent American litigation. There is a reasonably neutral assessment of the implications of the current Tariff 22 case before the Copyright Board. However, there is no discussion of what will likely be the main issue on judicial review, which is that of whether an ISP outside Canada can or should be liable to a Canadian collective. On the other hand, there is a surprisingly specific and critical discussion of the stalled tariff application by SODRAC before the Copyright Board that could have disruptive consequences for the Internet.
 
 

• THE RETRANSMISSION PAPER

 

 

The third paper ("Retransmission") issued by the Government is a response to the issues raised first by iCraveTV and now JumpTV, who wishes to use Internet technology to "retransmit" commercially broadcast local and distant television signals so as to deliver them to users' computer screens more or less simultaneously with the original broadcast. Although this technoloy is thus far a poor substitute for traditional television in terms of picture quality, the concept is clearly a serious threat to a number of established interests and has made strange bedfellows out of the heretofore mortal enemy camps of copyright owners and broadcasters. In a pending Copyright Board proceeding, JumpTV is claiming to be entitled to function as a retransmitter pursuant to the compulsory license scheme in s. 31 of the Copyright Act.

The Canadian Cable Television Association ("CCTA") is supporting JumpTV's theory, stating that:
 

There is no basis on which the Board can treat Internet technology any differently than cable, satellite or wireless delivery mechanisms so long as the conditions in subsection 31(2) are satisfied. The Board should not read into the section any technology specific exclusions.

...

Any use by cable operators of Internet technology in the delivery of television programming should not disqualify those cable operators from being able to offer retransmitted distant signals pursuant to section 31, if the requirements of the section are being met. ⁽¹⁵⁾

An alliance of Canadian and international copyright owners and broadcasters has sought to stop JumpTV dead in its tracks with a legislative intervention.

As is well known, iCraveTV ran afoul of a U.S. Court that took jurisdiction due mainly to unusual factual circumstances that need not be repeated by any other entity. ⁽¹⁶⁾ There was no Canadian adjudication of the issues. JumpTV's current efforts to succeed where iCraveTV failed are directed towards obtaining a tariff as a retransmitter under the Copyright Act. JumpTV has clearly chosen not to assert the arguably, if not obviously, tenable position that it is free to retransmit because it is willing to pay "any" royalties and comply with "any" terms and conditions fixed under the Act, as provided in s. 31 of the Copyright Act, and that there being none in place, there is no reason for it to wait.

JumpTV purports to distinguish itself from iCraveTV by insisting that it can use an identified service ⁽¹⁷⁾ to adequately ensure that its retransmitted television signals cannot be accessed from outside of Canada. Thus far, many have claimed that there is such technology and that it is effective, but there is much scepticism of such claims. Indeed, such a service would be something akin to the Holy Grail of Internet B2B tools if it actually works sufficiently well and efficiently and is not readily defeasible by other technology, such as that of anonymizing software that offers user invisibility and privacy.

The Canadian government has decided that non-consensual retransmission of signals outside of Canada is not in Canada's interest. While this may indicate that Canada has chosen to take a high road in terms of copyright principles, there is no domestic or international legal requirement to do so. Indeed, American courts profess not to be concerned with acts of infringement entirely outside of the U.S.A. ⁽¹⁸⁾ Unless and until there is a treaty in place that would require other countries to take such an equally and arguably altruistic position, it is not obvious how this would benefit Canada.

Absent in the discussion is any thorough explanation of how Canada has come to face this clearly predictable situation. The revision that began with the FTA implementing legislation in 1989 took a unique and awkward approach, which was intended to provide an all-encompassing right of "communication to the public by telecommunication". The drafters wanted to catch any possible activities. It then became necessary to provide a long list of exceptions and qualifications, not least of which involved the compulsory license (cast as an "exception") to permit traditional retransmission.

Untested and over-reaching approaches (such as the 1989 legislation) to new technology can have a hydra-like effect. They soon require even more legislation to fix the predictable ever-sprouting defects. This has already happened with the 1989 legislation, which went both too far and not far enough. It looks as if even more legislation will be necessary to deal with issues arising from the apparent loophole created by the retransmission exception to the right that was overly inclusive in the first place.

In this process, much harm could potentially be done to the architecture and utility of the Internet, not to mention the demand for broadband. For example, many radio stations are voluntarily streaming their own signals on the Internet. Third parties are also arranging for the access to these signals and packaging them through convenient sole source portals with database and search facilities. To its credit, the Retransmission paper recognises that this is an issue that requires further comment.

The paper suggests that legislative intervention in a pending matter before the Copyright Board is indicated in this instance. The Government is apparently very concerned that there is a possibility that JumpTV may succeed, and that the compulsory license would not be limited to Canada. It says that "The possibility of such a result following a period of potentially extended legal uncertainty argues in favour of the Government promptly bringing appropriate clarity to the proper scope of the Licence." ⁽¹⁹⁾

This could be an interesting precedent, if a quick fix is indeed applied. It certainly could lead to more such demands. There have been many past examples where the Courts have misconstrued sound legislation or where they have correctly construed unsound laws in intellectual property litigation, and no legislative patch was implemented. There are very few examples where the Government has intervened in response to specific pending matters. Such examples are rare, controversial, and usually come back to haunt at a later stage. These include the 1971 amendment to the Copyright Act to cut off the possibility of a license for the performance of sound recordings (undone in turn by legislation in 1997) and the various amendments to the Patent Act do deal with generic drugs. One successful example with little aftermath was the amendment to s. 64 of the Copyright Act in Bill C-60 in 1988 to deal with the threat of copyright protection being applied to purely utilitarian three dimensional objects. However, this was not done to interfere with a specific case. The Courts had already solved the immediate problem but clarification was still deemed to be necessary.

The timing of whatever fix the Government decides upon will also be very interesting. The Copyright Board hearing on the substantive legal issues (as compared with the potential rates) is scheduled to proceed on December 4, 2001. This is well in advance of the apparent timetable suggested by the Government, which indicates that policy options will be developed "if necessary" in early 2002. ⁽²⁰⁾ Thus, the Board could conceivably rule on the substantive matters well before an amendment is passed, unless the Government should decide that it is not "necessary" or desirable to wait until 2002 and introduces a bill this fall.

Interestingly, the Board has recently indicated on July 4, 2001 in a procedural ruling, without reasons, that "neither the availability of programming on the Internet, nor the existence or efficiency of border controls, are at issue in Phase I of these proceedings." This strongly suggests that territorial restrictions on JumpTV's activities will not be relevant to the Board's ultimate decision. This appears to be potentially consistent with the Board's Tariff 22 decision but potentially inconsistent with one of the Government's main options.

The two broad options under consideration by the Government are the express exclusion of Internet retransmission from the benefit of the existing compulsory license scheme or some kind of technologically neutral application of the license with "appropriate" territorial and other restrictions. Both possibilities create complex problems in turn. To its credit, the Government recognizes that the first possibility - which is clearly much easier for it to deal with both legally and politically - presents serious potential definitional and technological problems. For example, it may be difficult to define the Internet for these purposes and the broadcasting and retransmission industry may themselves wish to utilize the Internet, whatever that may be, as the most efficient mode of Retransmission in the future. The ironies of convergence are also at least partially recognized, if not sufficiently discussed. For example, both the "telcos" and the cable industry (to a perhaps lesser extent) and are becoming content owners in Canada and are also presently a duopoly for the provision of residential broadband Internet service. In the U.S.A., the AOL//Time Warner/CNN merger resulted in a very powerful and highly converged content/broadcast/cable/broadband/ISP behemoth with enormous legal, business and political clout.

Apart from the fact that the Government has clearly already decided that intervention is needed, the discussion of the JumpTV and Internet retransmission issues is the most thorough, balanced and documented (although references are still far from complete) of the three papers. It may strive to appear balanced as a result of a newspaper report a few weeks ago that suggested that the Government has made up its mind in favour of the armada of opposing content owners and broadcasters in Canada and the U.S.A. ⁽²¹⁾ It does not deal with potentially related policy implications of the intense and on-going litigation concerning grey market satellite signals from the U.S.A. Both the B.C. and Ontario Court of Appeal have held that it is not an offence in Canada to subscribe to foreign satellite programming.

The situation is somewhat but not precisely reminiscent of the situation in 1954 when the Exchequer Court of Canada, in a prescient and technologically savvy decision ⁽²²⁾, held that the new upstart technology of cable retransmission was not contrary to the Copyright Act. It took the Government 35 years to determine how to reverse this decision, and several corrections afterwards to finally get it right. In the meantime, the cable industry, which is now one of the duopolistic mainstays of the Canadian communications establishment, was permitted to flourish and became a useful instrument of Canadian cultural policy.
 
 

• IMPLICATIONS AND CONCLUSIONS

 

 

The main flaw with the Government papers is that they provide insufficient information and in some instances conceal real controversies or issues. This makes informed decision making very difficult for those without access to expert and independent advice. Despite the flaws with the three papers, the fact remains that this is a milestone in Canadian copyright law. The overall direction of the Government seems fairly clear, which is probably the eventual ratification of the 1996 WIPO treaties and a short term plug or patch of some sort to deal with the Internet retransmission issue, where status quo does not seem to be an option. However, the Government has left much wiggle room and may actually be hesitating or even balking on several fronts. If the announced consultation process is genuine, the papers may signal more openness than was evident in the Bill C-32 process, and less reflexive deference to the usual lobbyists. While many may wish for more immediate and decisive results, it is clear that this process could go on for some time.

Nonetheless, given the current political situation, this Government can likely pass whatever legislation it wants whenever it wants with little if any effective parliamentary opposition. Accordingly, all concerned interests will need to concentrate on immediate lobbying efforts. The Government has asked for comments on the three papers by September 15, 2001. These comments will be posted on the web, with comments on the comments due in turn by October 5, 2001. Those who espouse open government may be concerned those who comment may request that their comments not be so posted.

Howard Knopf
 

Macera & Jarzyna

Ottawa, Canada

613-238-8173

E-mail: howard.knopf@macerajarzyna.com

Adjunct Special Lecturer, Queen's University
 

NOTES

1. All three papers can be found online at http://www.pch.gc.ca or http://www.strategis.gc.ca

2. Édutile Inc. v. Automobile Protection Assn., 81 C.P.R. (3d) 338, Reversed 6 C.P.R. (4th) 211 (FCA).

3. Tele-Direct (Publications) Inc. v. American Business Information, Inc. 76 C.P.R. (3d) 296 (Federal Court of Appeal)

4. http://www.statcan.ca/Daily/English/010620/d010620f.htm

5. http://www.loc.gov/copyright/reports/

6. CRTC Public Notice 1999-118

7. Digital Issues , p. 1, 12 and passim.

8. (http://strategis.ic.gc.ca/SSG/ip01038e.html http://strategis.ic.gc.ca/SSG/ip01039e.html)

9. H. Knopf, Parallel Imports and the Internet: Bits, Borders, Barriers and Exhaustion, International Intellectual Property Law & Policy (proceedings of 8^th Annual Fordham Conference on International Intellectual Property Law and Policy), New York, Juris Publishing, Inc., 2001, Chapter 113.

10. (1999) 1 C.P.R. 4^th 417. A commentary on the Tariff 22 has been published by this author at H. Knopf, Copyright and the Internet in Canada and Beyond: Vision and Division, [2000] E.I.P.R. 262.

11. Tariff 22 decision, page 36.

12. Supra, note 9.

13. Universal City Studios v. Sony Corp., 464 U.S. 417 (1984)

14. 35 U.S.C. 292

15. CCTA Statement of Case dated July 6, 2001 filed with Copyright Board.

16. H. Knopf, Copyright and the Internet in Canada and Beyond: Convergence, Vision and Division, [2000] E.I.P.R. 262.

17. See http://www.quova.com

18. Subafilms Ltd. v. MGM -Pathé Communications Co., 24 F. 3d 1088 at 1093, 1097 (U.S. Court of Appeals for the Ninth Circuit), cert. denied, 513 U.S. 1001 (1994).

19. Retransmission, p. 12.

20. http://strategis.ic.gc.ca/SSG/rp01100e.html

21. I. Jack, Jumptv Hits High Hurdle, National Post, May 28, 2001

22. Canadian Admiral Corp. v. Rediffusion, Inc. (1954), 20 C.P.R. 75, [1954] Ex. C.R. 382, 14 Fox Pat. C. 114 -